THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
W.P. No.9371 of 2021
ORDER:
The present Writ Petition is filed under Article 226 of Constitution
of India for the following relief\s:
" .... to issue a writ order or direction more particularly one in the nature of Writ of Certiorari under Article 226 of Constitution of India by calling for the records pertains to the impugned Memo No.HMF01/146/2020-G, dated:27-03-2021 issued by the 1 st respondent in rejecting the request of the petitioner in regularizing the services of the petitioner as a Lab Technician Grade-II under the control of respondents which is illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India, quash and set aside the same and consequently direct the respondents to regularize the services of the petitioner as Lab Technician Grade-II under the control of respondents with all consequential benefits including continuity of service with arrears of difference of pay along with further promotion with effect from the date of accident i.e., 24.05.2016 and pass such other order or orders...
2. The present writ petition is filed questioning the rejection order
vide Memo No. HMF01/146/2020-G, dated 27-03-2021, issued by the
1st respondent, wherein the request of the petitioner for regularization
was rejected.
3. Learned counsel for the petitioner would submit that the
respondent has conducted an examination for appointment as Lab 2
Technician Grade-II (Contract) vide Government Memo
17312/J2/2008-2 with approval of the District Collector and District
Magistrate, Ongole, Prakasam District. The petitioner was successful in
the written test conducted by the respondents and he was given an
appointment as Lab Technician Grade-II (Contract) and posted to UG
PHC, P.Dornala of Prakasam District, vide Rc.No.12/RNTCP/TB
/B1/2016 dt.18.01.2007.
4. Learned counsel for the petitioner further submitted that since
the appointment of the petitioner, the petitioner is discharging his
duties without any blemish and to the satisfaction of the authorities
and he met with an accident on 24.05.2016 and he availed leave due to
the said accident from 24.05.2016 to 31.04.2017. He would further
submit that no charges are pending against the individual and he made
a representation to the respondents herein for regularization of his
services. As no orders were passed by the respondents herein the
petitioner was constrained to file Writ Petition No.17895 of 2016. This
Court by an order dated 02.07.2019 disposed of the above said writ
petition at the admission stage directing the petitioner to submit a fresh
application with all relevant documents to the respondent authorities
and the same shall be considered by the respondent authorities by
fixing a time. Basing on the said order of this Court, the authorities
have passed impugned order dated 27.03.2021 rejecting the claim of
the petitioner for regularization on the ground that "the petitioner
cannot be regularized until the Government issues specific 3
guidelines for regularization of contractual services as Lab
Technician Grade-II".
5. Aggrieved by the said rejection the present Writ Petition came to
be filed. The contention of the petitioner is that he was not appointed
on back door methods and he was appointed under due procedure of
law. A written test was conducted and he was selected in the written
test and there is a clear vacancy of the above said post. Hence, not
regularizing the services of the petitioner as Lab Technician Grade-II, is
arbitrary, illegal and violation of Article 21 of Constitution of India.
Hence, prayed to direct the respondents to consider the case of the
petitioner for regularization.
6. Learned counsel for the respondents filed counter affidavit and
admitted that the petitioner was discharging his duties as Lab
Technician Grade-II (contract) vide proceedings dated 18.01.2017 and
his case was rejected on the ground that no contractual employee
can be regularized.
7. Under Rule 10 of Andhra Pradesh State Subordinate Service Rules,
1996 (hereinafter called as "Rule") temporary appointment including
appointments by direct recruitment, recruitment/ appointment by transfer
or by promotion was defined as per the indicated rules, whenever it is
necessary in the Public Interest to fill emergently a vacancy in a post
borne on the cadre of a service, class or category and if the filling of such
vacancy in accordance with the rules is likely to result in undue delay the 4
appointing authority may appoint a person temporarily, otherwise than in
accordance with the said rules.
8. The said Rule indicates that a temporary employee can be
appointed only in a clear vacancy post and the appointment is to meet
the exigency, when it is likely to result undue delay in filling up the
vacancy then the appointing authority may appoint a person
temporarily.
9. The Hon'ble Supreme Court in State of Karnataka v. Umadevi 1
has carved out an exception to the general principle against
regularization, the same is hereby extracted:
i The incumbent should have worked for 10 years or more on a duly sanctioned post without the benefit or protection of the interim order of any Court or Tribunal.
ii. The appointment of such employee should not be illegal, even if irregular.
And the same principle has been followed by the Hon'ble Apex Court in State of Karnataka v. M.L. Kesari2
10. In the present case, the petitioner was appointed on 18.01.2007
and he was in service more than 10 years. The appointment of the
Petitioner was not irregular appointment or illegal appointment. He was
appointed under due procedure of law. The counter does not
specifically says that the appointment of the petitioner was irregular or
1 2006 (4) SCC 1 2 2010 (9) SCC 247 5
illegal appointment or which was not sanctioned post. Only contention
taken by the respondent in the counter affidavit is that the petitioner is
working on contract basis, cannot be regularized until the
Government issues specific guidelines for regularization of his
contractual services as Lab Technician Grade-II.
11. In a case of Neelima Srivastava v. State of Utter Pradesh and
others3, Hon'ble Supreme Court held that after following the judgments
of the Umadevi case, S.V. Narayanappa case4, R.N. Nanjundappa case5
and State of Karnataka v. M.L. Kesari 6 held that if the post is duly
sanctioned vacant post and the employees are continued to work 10
years or more without the intervention of the orders of the Court or
Tribunal, may be considered for regularization, as one time measure.
12. The term 'one time measure' has been explained by a division
Bench of the composite High Court of Andhra Pradesh in W.P.
No.27217 of 2017. The relevant para is hereby extracted:
"The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi case, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against
3 2021 SCC Online SC610 4 AIR 1967 SC 1071 5 1972 (1) SCC 409 6 2010 (9) SCC 247 6
vacant posts and possess the requisite qualification for the post and if so, regularize their services."
13. As stated and as indicated in Rule 10 above, the appointment of
the petitioner is not an illegal or irregular appointment. His
appointment was made in due procedure and in a sanctioned post.
Hence, in view of the same, the respondents are hereby directed to
consider the case of the petitioner for regularization of his services in
view of the reasons stated supra, within a period of three months from
the date of receipt of a copy of the order.
14. With the above said directions, the writ petition is disposed of. No
costs.
Miscellaneous Petitions pending, if any, shall stand closed.
_______________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 10-10-2022 Harin 7
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
W.P. No. 9371 of 2021
Date: 10-10-2022
Harin
